M&A Lawyer

When selling your business, retaining an attorney to represent you is necessary unless your business is small – less than $1 million in purchase price. While an attorney isn’t always a requirement in smaller transactions, they can be tremendously helpful. While many small transactions successfully conclude without an attorney, all sellers should hire an attorney and have them prepared to become involved in the transaction at a moment’s notice. If the purchaser of your business is a corporate or financial buyer, your attorney will need to be intricately involved in the transaction, regardless of the size of your transaction.

For middle-market transactions, the buyer often brings a team of dozens of experts and other advisors to due diligence. As a result of the imbalance, you should aim to at least achieve negotiating parity by hiring the best advisors you can afford – that’s especially true for your attorney. Unfortunately, your standard commercial attorney is less than ideal. Rather, you should hire an attorney whose sole expertise is handling mergers and acquisitions transactions.

It’s also important to bear in mind that no contract can provide complete protection for both parties. There are too many variables to anticipate and address. As a result, it’s critical that your attorney remains flexible, is capable of balancing tradeoffs, and that you trust the buyer. 

You should hire an attorney whose sole expertise is handling mergers and acquisitions transactions.

Roles

Here are the common roles your attorney will play in the sale of your business:

Non-Disclosure Agreement

While a standard non-disclosure agreement (NDA) works in most cases, I recommend your attorney draft a custom NDA if the sale is particularly sensitive and you’re approaching or negotiating with your competitors or anyone else in your industry.

Letter of Intent

Your broker may often prepare the letter of intent if the buyer is an individual. However, the buyer’s legal team usually prepares the LOI if the purchaser is a corporate buyer, private equity firm, or a competitor. If so, you will often need to heavily involve your attorney in the process. In such cases, your attorney should be on standby and available to respond quickly when you receive an offer or LOI.

Due Diligence

The extent to which your attorney is involved in due diligence depends on how thoroughly the buyer conducts their due diligence. Your broker can often anticipate how thoroughly the buyer will perform their due diligence based on their preliminary conversations with them. Often, they can let you know in advance if they feel your attorney will need to play a more involved role.

Purchase Agreement

• Small Businesses: As noted above, your broker may often prepare the purchase agreement and closing documents using their templates if the buyer is an individual or smaller competitor with less than $5 million in revenue, which tends to be more common for smaller businesses. If so, you may optionally have your attorney review them. 
• Mid-Sized Businesses: The buyer’s legal team customarily prepares the purchase agreement if the buyer is a corporate buyer, private equity firm, or competitor, which is common for mid-sized companies. If that’s the case, your attorney will need to be intimately involved in the negotiations of the key agreements. The purchase agreement is often prepared simultaneously while due diligence is being conducted, which gives the parties plenty of time to negotiate the agreement. On the other hand, the negotiations surrounding the LOI tend to be more time-sensitive so you should have your attorney on standby for when you receive a letter of intent.

Closing Process

Your attorney can also facilitate the closing process and wiring of funds if the buyer’s attorney or escrow is unavailable to do so.

Other Roles

Your lawyer can also prepare or review the necessary transfer documents if you’re selling a building or land. 

Tips for Hiring an M&A Attorney

When hiring an attorney, you should look for the following:

Experience: Your attorney should have acted in dozens of transactions and should dedicate a substantial portion of their time to M&A – the more, the better. Ideally, your attorney should spend more than half of their time specializing in M&A transactions.

Negotiating Skills: Your legal advisor should also be an excellent negotiator. Often the negotiations on representations and warranties (reps and warranties) is tougher and more challenging than negotiating the price. 

Other Soft Skills: Find a lawyer who doesn’t feel compelled to participate in or influence the commercial aspects of the deal unless you specifically request them to do so. Your advisor should also be capable of offering solutions in risk management, such as creative deal structuring. 

Fees: Most professional advisors charge by the hour, while a minority charge a flat fee. Most of those that charge a flat fee understand the process enough to be comfortable quoting a flat fee. Fees can range from $150 per hour to more than $1,000 per hour and are discussed in more detail below.